F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 25 September 2015, in the following composition: Geoff Thompson (England), Chairman Carlos González Puche (Colombia), member Theo van Seggelen (Netherlands), member Guillermo Saltos Guale (Ecuador), member Alejandro Marón (Argentina), member on the matter between the player, Player A, country B as Claimant / Counter-Respondent and the club, Club C, country D as Respondent / Counter-Claimant and the club, Club E, country F as Intervening Party regarding an employment-related dispute arisen between the parties I.

F.I.F.A. - Camera di Risoluzione delle Controversie (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 25 September 2015, in the following composition: Geoff Thompson (England), Chairman Carlos González Puche (Colombia), member Theo van Seggelen (Netherlands), member Guillermo Saltos Guale (Ecuador), member Alejandro Marón (Argentina), member on the matter between the player, Player A, country B as Claimant / Counter-Respondent and the club, Club C, country D as Respondent / Counter-Claimant and the club, Club E, country F as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On an unspecified date, the player from country B, Player A (hereinafter: player or Claimant/Counter-Respondent) and the club from country D, Club C (hereinafter: club or Respondent/Counter-Claimant) signed an employment contract valid for a period of two years, expiring on 30 June 2014 (hereinafter: the contract). 2. According to the contract, the player was entitled to receive, inter alia, the following amounts: a monthly salary of EUR 9,400, payable on the 25th day of the next month; a payment of EUR 10,000, due on 1 August 2012; as from 1 July 2013, a monthly salary of EUR 11,200, payable on the 25th day of the next month; a payment of EUR 10,000, due on 1 August 2013. 3. The player states that the club failed to pay him the salaries for the months of February 2013 and March 2013, as well as the payment due on 1 August 2012, which was on 20 May 2013 reason for him to put the club in default and ask for the payment of said salaries within two days. 4. On 3 June 2013, the player again put the club in default, for not having paid the salaries for the months of February 2013, March 2013 and April 2013. Further, the player informed the club that if said salaries were not paid within 2 days, he would ‘exercise the right to immediately terminate the labor contract with just cause’. According to the player, the club did not pay the requested amount. 5. Finally, on 10 June 2013, the player terminated the contract with immediate effect. 6. On 14 July 2013, the player lodged a claim before FIFA against the club, claiming the total amount of EUR 191,400, plus 5% interest, as follows: payment of outstanding remuneration in the amount of EUR 37,600, corresponding to 4 salary payments of EUR 9,400 each, related to the months of February, March, April and May 2013; compensation for breach of contract by the club in the amount of EUR 153,800, as follows: - EUR 9,400 as the residual value of the contract in the month June 2013; - EUR 134,400 as the residual value of the contract in the period between July 2013 and June 2014; - EUR 10,000 as the payment due on 1 August 2013. Additionally, the player requests that the club should be ordered to pay his legal fees and the costs of the proceeding. 7. On 29 August 2013, the club replied to the player’s claim, by arguing that the three delayed salaries as mentioned by the player qualify ‘as insubstantial in comparison with the financial obligations’ and further stating that ‘the mere fact that the payment of three salaries appeared to have been delayed should not be overestimated’. 8. Furthermore, according to the club, the power of attorney attached to the player’s first default letter of 20 May 2013, did not mention that Mr G was entitled to represent the player ‘before Club C for the purpose of notifying the latter regarding breach of contract and terminating the contract in case of non-compliance with the warning’. In addition, the club states that it immediately reacted to the player’s first default letter and paid him EUR 10,000 on 21 May 2013. 9. With respect to the second default letter, the club states that it did not to comply with the Labor Code of country D, which stipulates that salaries are either paid in cash, or - if an employee explicitly requests this in writing – to other persons than the employee. According to the club, the legal representative of the player was not authorised by the player to instruct the club to pay the remuneration to the bank account indicated by the legal representative in the letter dated 3 June 2013, which left the club with no other option than to pay the salaries in cash. However, the club argues that the payment in cash was impossible, because the player left country D in June 2013. 10. In addition, the club argues that the first default letter gave a very short period for payment (i.e. 2 days) and the second default letter was not valid because the sender (i.e. the player’s legal representative) was not authorized to 1) request for the alleged outstanding payments and 2) indicate a bank account for such payments. As a result thereof, the club was ‘not given a chance to avoid the termination’. 11. The club concludes that the player had no just cause to terminate the contract and that therefore, no compensation is due to the player. 12. Moreover, the club argues that the player terminated the contract without having just cause and claims compensation of EUR 112,400 for breach of contract by the player, plus interest as from 10 June 2013. According to the club, this amount corresponds to the residual value of the contract (EUR 129,067), plus an additional compensation for breach of contract during the protected period (EUR 20,933), minus three monthly salaries in the total amount of EUR 37,600, which are to be paid by the club. 13. Despite being invited to do so, the player did not respond to the counterclaim within the investigation-phase of the matter, but only after the closure of investigation. On 28 April 2015, the player answered to the counterclaim of the club, by stating that on the date of termination of the contract, the club failed to pay him three monthly salaries, which gave him just cause to unilaterally terminate the contract on 10 June 2013. 14. Further, the player argued that it was the obligation of the club to punctually pay the salaries of its employees; however, it did not provide any evidence that it actually did so or that it tried to solve the matter as soon as possible. Finally, the player argues that the periods for payment in his default letters were not extremely short, and that the fact that the power of attorney did not give his legal representative the right to ask for payment of monies, was ‘merely an error in the writing’. 15. Upon request, the player provided FIFA with a contract signed with the club from country F, Club E, valid as from 15 August 2013 until 31 December 2014, according to which the player was entitled to receive a monthly salary of 1,425. 16. Nevertheless, according to the information contained in the Transfer Matching System (TMS), the player received an additional monthly payment of USD 10,000 (if he was participating in less than 50% of the matched played by Club E), an additional monthly payment of USD 12,000 (if he was participating in 50% or more of the matched played by Club E) or an additional monthly payment of USD 15,000 (if he was participating in 50% or more of the matched played by Club E in the starting squad). 17. Despite being invited to do so, the new club of the player, Club E did not present its comments. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 14 July 2013. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D, with the involvement of a club from country F. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 14 July 2013, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. In continuation, the members of the Chamber noted that the Claimant/CounterRespondent lodged a claim against the Respondent/Counter-Claimant maintaining that he had terminated the employment contract with just cause on 10 June 2013, after previously having put the Respondent/Counter-Claimant in default, since it allegedly failed to pay his remuneration. 6. The Respondent/Counter-Claimant, on the other hand, rejects such claim and lodged a counterclaim against the Claimant/Counter-Respondent maintaining that the latter had terminated the contract on 10 June 2013 without just cause and claiming EUR 112,400 as compensation for the unjustified termination of the contract by the Claimant/Counter-Respondent. 7. In this context, the members of the Chamber highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant/CounterRespondent had just cause to terminate the contract on 10 June 2013. The members of the Chamber also underlined that, subsequently, after the determination whether the contract was terminated by the Claimant/Counter-Respondent with or without just cause, it would be necessary to determine the consequences of such termination. 8. In this respect, the Claimant/Counter-Respondent submits to not have received the monthly salaries corresponding to the months February, March and April 2013 from the Respondent/Counter-Claimant at the time he terminated the employment contract. Consequently, the Claimant/Counter-Respondent asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract. 9. The Chamber then turned its attention to the arguments of the Respondent/CounterClaimant stating that the Claimant/Counter-Respondent had no just cause to terminate the contract, since (a) there was only an insubstantial amount of salary payments outstanding on 10 June 2013, (b) the Claimant/Counter-Respondent did not properly authorize his legal representative to request for the remuneration the Respondent/Counter-Claimant had to pay to him and (c) the Claimant/CounterRespondent did not validly and properly warn the Respondent/Counter-Claimant about his intention to terminate the contract. 10. In this context, the members of the Chamber first noted that the Respondent/CounterClaimant did not contest that on the day of termination of the contract, i.e. 10 June 2013, three monthly salaries of EUR 9,400 each had not been paid. Further, the Chamber took into account that in accordance with the employment contract, the Respondent/Counter-Claimant should have paid to the Claimant/Counter-Respondent at the time the contract was terminated by the Claimant/Counter-Respondent, i.e. on 10 June 2013, the total amount of EUR 28,200 as salary corresponding to the months February, March and April 2013, due on the 25th day of the respective following month. 11. In this regard, the members of the Chamber were of the opinion that three outstanding monthly salaries cannot qualify as ‘insubstantial’ and that therefore, the Respondent/Counter-Claimant seriously neglected its financial contractual obligations towards the Claimant/Counter-Respondent. 12. Furthermore, the members of the Chamber analysed whether the Respondent/CounterClaimant had submitted valid reasons for not timely paying the requested amounts. 13. Turning to the Respondent/Counter-Claimant’s argument that it could not pay the aforementioned amounts in time, and that it had no proper chance to avoid the termination of the contract, because the power of attorney submitted by the Claimant/Counter-Respondent did not gave his legal representative the authorization to request for the outstanding amounts, the members of the Chamber established that such position is not backed by DRC jurisprudence. The mere fact that the power of attorney allegedly did not mention that the Claimant/Counter-Respondent’s legal representative was authorized to request for the outstanding payments, does not release the Respondent/Counter-Claimant from its contractual obligation to timely pay the contractually agreed remuneration. 14. Furthermore, the members of the Chamber focused on the argument of the Respondent/Counter-Claimant that it had no proper chance to avoid the termination of the contract, since the deadlines for payment in the default letters of the Claimant/Counter-Respondent were ‘very short’. 15. In this respect, the Respondent/Counter-Claimant was informed on 20 May 2013 and 3 June 2013 about the outstanding amounts, and, on 21 May 2013, it paid the Claimant/Counter-Respondent the amount of EUR 10,000. However, the Respondent/Counter-Claimant failed to remit the remaining outstanding amounts to the Claimant/Counter-Respondent until 10 June 2013, i.e. 20 days after the first default letter. Therefore, in the Chamber’s view, the Respondent/Counter-Claimant had a proper opportunity to avoid the termination of the contract, however it failed to do so. 16. In this framework, the members of the Chamber turned to the counterclaim lodged by the Respondent/Counter-Claimant, which maintains that the Claimant/CounterRespondent terminated the contract without just cause. The Chamber observed that the Claimant/Counter-Respondent, in spite of having been invited to do so, failed to present his response to the claim of the Claimant within the relevant time-limit. In fact, the reply of the Claimant/Counter-Respondent was only received after the investigation-phase of the matter had already been concluded. As a result, the DRC decided not to take into account the reply of the Claimant/Counter-Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase. 17. Despite the reply of the Claimant/Counter-Respondent not being taken into account, the Chamber was of the opinion that based on the documents on file, it could be established that the Respondent/Counter-Claimant did not timely pay three monthly salaries in the total amount of EUR 28,200, corresponding to the months of February, March and April 2013, which had fallen due and remained outstanding at the time of the termination of the contract, i.e. 10 June 2013. 18. Consequently, and reiterating the Chamber’s jurisprudence at this point, the Chamber decided that the Respondent/Counter-Claimant was repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant/Counter-Respondent. As a result thereof, the Chamber decided that the Claimant/Counter-Respondent had just cause to unilaterally terminate the employment contract on 10 June 2013, having previously put the Respondent/Counter-Claimant in default. 19. As a result of the aforementioned considerations, the Chamber concluded that the Respondent/Counter-Claimant is to be held liable for the early termination of the employment contact with just cause by the Claimant/Counter-Respondent. In continuation, the Chamber focused its attention on the consequences of such termination. 20. First of all, the members of the Chamber concurred that the Respondent/CounterClaimant must fulfil its obligations as per the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the Claimant/Counter-Respondent the remuneration for the months during which the Claimant was employed by the Respondent but had not yet been paid at the time of the termination, i.e. the amount of EUR 37,600, consisting of the salaries for February, March, April and May 2013 in the amount of EUR 9,400 each. In this respect, the Chamber clarified that although the salary for May 2013 only fell due on 25 June 2013, it should be included in the calculation for the outstanding remuneration since the relevant payment corresponded to the remuneration earned in a month prior to the termination of the contract. 21. Furthermore, and considering the Claimant/Counter-Respondent’s claim for interest, the Chamber ruled that the Respondent must pay 5% interest on the amount of EUR 37,600 as from the date of claim, i.e. 14 July 2013. 22. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant/Counter-Respondent is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract. 23. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant/Counter-Respondent by the Respondent/Counter-Claimant in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the Claimant/Counter-Respondent under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 24. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 25. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent/Counter-Claimant to the Claimant/CounterRespondent had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. 26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant/Counter-Respondent under the terms of the contract as from its date of termination with just cause by the Claimant/Counter-Respondent, i.e. 10 June 2013, until 30 June 2014, and concluded that the Claimant/CounterRespondent would have received in total EUR 153,800 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 153,800 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand. 27. In continuation, the Chamber verified as to whether the Claimant/Counter-Respondent had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 28. In this respect, the Chamber noted that on 15 August 2013, the Claimant/CounterRespondent found employment with the club from country F, Club E. In accordance with the pertinent employment contract, which has been made available by the Claimant/Counter-Respondent, valid until 31 December 2014, the Claimant/CounterRespondent was entitled to receive a monthly salary of 1,425. 29. Furthermore, the Chamber took note that on 15 August 2013 the Claimant/CounterRespondent signed a second contract with Club E. In accordance with this second employment contract - which has not been made available by the Claimant/CounterRespondent but which was uploaded in the Transfer Matching System (TMS) - the Claimant/Counter-Respondent was entitled to receive an additional monthly payment of at least USD 10,000. For the period of 15 August 2013 to June 2014, this corresponds to a minimum total amount of USD 105,000. 30. Consequently, the Chamber established that the value of the new employment contract concluded between the Claimant/Counter-Respondent and Club E for the period as from 15 August 2013 until 30 June 2014 amounted to approximately EUR 81,500 and that the Claimant/Counter-Respondent was able to mitigate his damages with said amount. 31. As a result, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant/Counter-Respondent’s general obligation to mitigate his damage, the Chamber decided to partially accept the Claimant/Counter-Respondent’s claim and that the Respondent/Counter-Claimant must pay the amount of EUR 72,300 as compensation for breach of contract in the case at hand. 32. In addition, taking into account the Claimant/Counter-Respondent’s request as well as the constant practice of the Chamber, the Chamber decided that the Respondent/Counter-Claimant must pay to the Claimant/Counter-Respondent interest of 5% p.a. on the amount of compensation as of the date the claim was lodged, i.e. 14 July 2013 until the date of effective payment. 33. Moreover, the Chamber decided to reject the Claimant/Counter-Respondent’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard. 34. Furthermore, the members of the Chamber decided to reject any further claim lodged by the Claimant/Counter-Respondent. 35. The Chamber concluded its deliberations in the present matter by rejecting the counterclaim lodged by the Respondent/Counter-Claimant. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Player A, is partially accepted. 2. The counterclaim of the Respondent / Counter-Claimant, Club C, is rejected. 3. The Respondent / Counter-Claimant, has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 37,600 plus 5% interest p.a. as from 14 July 2013 until the date of effective payment. 4. The Respondent / Counter-Claimant, has to pay to the Claimant / Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 72,300 plus 5% interest p.a. on said amount as from 14 July 2013 until the date of effective payment. 5. In the event that the amounts due to the Claimant / Counter-Respondent in accordance with the above-mentioned numbers 3. and 4. are not paid by the Respondent / Counter-Claimant within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant / Counter-Respondent is rejected. 7. The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01 e-mail: info@tas-cas.org / www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl. CAS directives